As we think about the very real possibility of a Trump II administration, the consequences for the rule of law should be foremost in our mind. As he promises retribution against his enemies through the courts, should we believe him?
Yes.
Trump will be able to use prosecutorial and investigative power to go after his political opponents. While frivolous charges will not lead to convictions, they will have significant harassment value. More ominously, they will further degrade norms of professionalism on which the rule of law depends.
The politicization of prosecution is a profound danger to the rule of law for three reasons.
First, it invites tit-for-tat responses over time that raise the stakes of political control.
Second, politicized prosecution can degrade public respect for the legal process, especially among strong partisans.
A third, more subtle, reason is that political accountability and legal accountability are to some extent substitutes.
Unfortunately, while there are barriers to prevent politicized prosecutions of the sort threatened by Trump, they are generally weak.
The first barrier is professional norms among prosecutors.
Secondly, Trump’s allies have said his administration would eliminate the FBI’s Department of Legal Counsel
Thirdly, there are few legal limits to charging decisions. There is an old common law doctrine of malicious prosecution, which allows civil suits to recover damages from prosecutions pursued without probable cause—but it is almost never successful.
Even if suits are not successful, being targeted has real costs. Trump can very likely order investigations and prosecutions which will have a significant harassment effect on their targets.
Even if suits are not successful, being targeted has real costs. Trump can very likely order investigations and prosecutions which will have a significant harassment effect on their targets
The bigger consequence of such suits would be the undermining of professional norms associated with the rule of law. Investigating crime by high-level politicians is a sensitive matter that requires a non-partisan approach. We should be relieved when we see the indictment of Hunter Biden or New York Mayor Eric Adams by a Justice Department led by co-partisans. We should be deeply dismayed by political campaign promises to prosecute one’s opponents, whether those come from Letitia James or Donald Trump. When we turn prosecution into a simple political weapon, we degrade both our politics and the law at the same time.
!ping DEMOCRACY&LAW
AmericanPurposeMag on
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Summary
As we think about the very real possibility of a Trump II administration, the consequences for the rule of law should be foremost in our mind. As he promises retribution against his enemies through the courts, should we believe him?
Yes.
Trump will be able to use prosecutorial and investigative power to go after his political opponents. While frivolous charges will not lead to convictions, they will have significant harassment value. More ominously, they will further degrade norms of professionalism on which the rule of law depends.
The politicization of prosecution is a profound danger to the rule of law for three reasons.
First, it invites tit-for-tat responses over time that raise the stakes of political control.
Second, politicized prosecution can degrade public respect for the legal process, especially among strong partisans.
A third, more subtle, reason is that political accountability and legal accountability are to some extent substitutes.
Unfortunately, while there are barriers to prevent politicized prosecutions of the sort threatened by Trump, they are generally weak.
The first barrier is professional norms among prosecutors.
Secondly, Trump’s allies have said his administration would eliminate the FBI’s Department of Legal Counsel
Thirdly, there are few legal limits to charging decisions. There is an old common law doctrine of malicious prosecution, which allows civil suits to recover damages from prosecutions pursued without probable cause—but it is almost never successful.
Even if suits are not successful, being targeted has real costs. Trump can very likely order investigations and prosecutions which will have a significant harassment effect on their targets.
Even if suits are not successful, being targeted has real costs. Trump can very likely order investigations and prosecutions which will have a significant harassment effect on their targets
The bigger consequence of such suits would be the undermining of professional norms associated with the rule of law. Investigating crime by high-level politicians is a sensitive matter that requires a non-partisan approach. We should be relieved when we see the indictment of Hunter Biden or New York Mayor Eric Adams by a Justice Department led by co-partisans. We should be deeply dismayed by political campaign promises to prosecute one’s opponents, whether those come from Letitia James or Donald Trump. When we turn prosecution into a simple political weapon, we degrade both our politics and the law at the same time.
!ping DEMOCRACY&LAW
Did you enjoy this article and wish to comment? Or are you interested in talking to our commenters? Or do you want to represent the values of liberal democracy on Substack? [Then join the conversation in the Persuasion comments section!](https://www.persuasion.community/p/trump-is-gearing-up-for-lawfare/comments)